New York Codes, Rules and Regulations
Title 22 - JUDICIARY
Subtitle B - Courts
Chapter IV - Supreme Court
Subchapter A - First Judicial Department
Article 1 - Appellate Division
Subarticle A - Rules of Practice
Part 606 - Legal And Medical Services; Duties Of Counsel Respecting Appeals
Section 606.5 - Duties of counsel with respect to representation of defendants in criminal actions
Universal Citation: 22 NY Comp Codes Rules and Regs ยง 606.5
Current through Register Vol. 46, No. 39, September 25, 2024
(a) Duties of assigned or retained counsel.
(1) It shall be the
duty of counsel assigned to or retained for the defense of a defendant in a
criminal action or proceeding to represent defendant in the trial court until
the action or proceeding has been terminated in that court, and to comply with
the provisions of paragraph (b)(1) or (d)(2) of this section, after which the
duties of assigned counsel shall be ended.
(2) It shall be the duty of counsel
assigned to prosecute or defend an appeal on behalf of an indigent defendant to
accept said assignment and to prosecute the appeal until entry of the order of
the appellate court terminating the appeal, and to comply with the provisions
of paragraph (b)(2) or (d)(2) of this section, after which the duties of
assigned counsel shall be ended.
(b) Notification of right to appeal or to apply for a certificate granting leave to appeal. Obligation to file profile statement with notice of appeal.
(1) After conviction and sentence.
Where there has been a conviction after trial or otherwise, or where there has
been an adverse decision upon an application for a writ of habeas corpus, upon
a motion to vacate a judgment made pursuant to section
440.10 of the Criminal Procedure Law,
upon a motion to set aside a sentence made pursuant to section
440.20 of the Criminal Procedure Law, or
where there has been a determination revoking parole, it shall be the duty of
counsel, retained or assigned, immediately after the pronouncement of sentence
or service of a copy of the order disposing of the application for a writ of
habeas corpus, of a motion to vacate a judgment made pursuant to section
440.10 of the Criminal Procedure Law, of
a motion to set aside a sentence made pursuant to section
440.20 of the Criminal Procedure Law, or
of a notice of the determination revoking parole, to advise the defendant or
parolee in writing of his right to appeal or to apply for a certificate
granting leave to appeal pursuant to subdivision 4 of section
460.10 of the Criminal Procedure Law, the
time limitations involved, in the manner of instituting an appeal and of
obtaining a transcript of the testimony, and of the right of a person who has
an absolute right to appeal or has received a certificate granting leave to
appeal and is unable to pay the cost of an appeal to apply for leave to appeal
as a poor person. It shall also be the duty of such counsel to ascertain
whether defendant or parolee wishes to appeal or to apply for a certificate
granting leave to appeal, and, if so, to serve and file the necessary notice of
appeal from a judgment of conviction or determination revoking parole or to
apply for a certificate granting leave to appeal from the denial of a motion
made pursuant to section
440.10 or section
440.20 of the Criminal Procedure Law and,
if granted, to file the necessary certificate and notice of appeal within the
time limitations provided for in subdivision 4 of section
460.10 of the Criminal Procedure Law.
Attached to the notices of appeal, counsel shall file two copies of a profile
statement which sets forth:
(i)
title of the action and indictment number;
(ii) county and court from which the
appeal is taken;
(iii) full names of the defendant and
any co-defendants;
(iv) name(s), address(es) and telephone
number(s) of defense counsel;
(v) charges upon which defendant stands
convicted and date judgment was entered;
(vi) pretrial hearings and dates
held;
(vii) trial
dates and/or plea dates; and
(viii) whether court ordered daily copy
of hearing or trial transcripts was received and the date(s) the transcripts
were returned.
(2) After determination adverse to
defendant. Immediately after entry of an order affirming a judgment of
conviction or and order modifying or reversing an order or sentence appealed by
the people pursuant to section
450.20 of the Criminal Procedure Law or
an order denying an application for a writ of habeas corpus, a motion to vacate
a judgment made pursuant to section
440.10 of the Criminal Procedure Law, or
a motion to set aside a sentence made pursuant to section
440.20 of the Criminal Procedure Law, it
shall be the duty of counsel, retained or assigned, to advise defendant of his
right to apply for permission to appeal and of the additional right of a person
who is unable to pay the cost of a further appeal (in the event permission
shall have been granted) to apply for leave to prosecute such appeal as a poor
person. It shall also be the duty of such counsel to ascertain whether
defendant wishes to apply for permission to appeal to the Court of Appeals,
and, if so, counsel shall make a timely application therefor. If permission to
appeal is granted, and poor person's relief and the assignment of counsel are
necessary, counsel shall make timely application for such relief. In the case
of an order affirming a judgment dismissing a writ of habeas corpus, such
counsel shall advise the relator of his or her right to appeal where there is a
dissent by at least two justices on a question of law, or of the right to apply
for permission to appeal where the determination is unanimous or there is a
dissent by fewer than two justices. In the case of a parolee, his counsel shall
advise the parolee, after notice of an adverse determination by the Board of
Parole of an appeal from a determination revoking parole, of his right to
commence a proceeding pursuant to article 78 of the Civil Practice Law and
Rules and of the time limitation applicable thereto.
(c) Notification to defendants who appear without counsel.
(1)
After conviction or denial of a motion to vacate a judgment made pursuant to
section
440.10 of the Criminal Procedure Law, or
of a motion to set aside a sentence made pursuant to section
440.20 of the Criminal Procedure Law. If
a defendant has appeared pro se, the trial court shall advise a defendant of
his right to appeal from a judgment of conviction, or of his right to apply for
a certificate granting leave to appeal from an order denying a motion to vacate
a judgment made pursuant to section
440.10 of the Criminal Procedure Law, or
of a motion to set aside a sentence made pursuant to section
440.20 of the Criminal Procedure Law. It
shall also advise a defendant of the right of a person unable to pay the cost
of an appeal to apply for leave to appeal as a poor person. If the defendant so
requests, the clerk of the court shall prepare and file and serve forthwith a
notice of appeal on behalf of the defendant from a judgment of conviction. If
the defendant so requests in writing within 30 days after service upon him of a
copy of an order denying a motion to vacate a judgment made pursuant to section
440.10 of the Criminal Procedure Law, or
of a motion to set aside a sentence made pursuant to section
440.20 of the Criminal Procedure Law, and
no previous application for a certificate granting leave to appeal has been
made, the clerk of the court shall serve a copy of such request upon the
district attorney and shall transmit the request and the original record of the
proceedings sought to be reviewed to the appellate court. Upon determination of
the application the original record of proceedings shall be returned to the
trial court together with a certified copy of the order entered upon the
application; a certified copy of the order shall also be sent to the defendant
at his address shown in the application.
(2) After determination adverse to
defendant.
(i) If on an appeal
from a judgment of conviction after trial or otherwise, or on an appeal from an
order or sentence appealed by the people pursuant to section
450.20 of the Criminal Procedure Law, or
from an order denying a motion to vacate a judgment made pursuant to section
440.10 of the Criminal Procedure Law, or
of a motion to set aside a sentence made pursuant to section
440.20 of the Criminal Procedure Law, a
defendant has appeared pro se, and the judgment, order or sentence is adverse
to the defendant the copy of the order of affirmance, with notice of entry,
which is served on the defendant shall have annexed or appended thereto the
following notice:
NOTICE AS TO FURTHER APPEAL
Pursuant to section 460.20 of the Criminal Procedure Law, defendant has the right to apply for leave to appeal to the Court of Appeals by making application to the Chief Judge of that court by submitting such application to the clerk of that court, or to a justice of the Appellate Division of the Supreme Court of this department on reasonable notice to the respondent within 30 days after service of a copy of the order or affirmance with notice of entry.
Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice.
(ii) Where an order
determining an appeal from a judgment that determines either a writ of habeas
corpus or a petition in an article 78 proceeding affecting a criminal case is
adverse to a relator or petitioner appearing pro se, the following notice shall
be annexed or appended to the copy of the order served, with notice of entry,
upon such relator or petitioner:
NOTICE AS TO FURTHER APPEAL
If the determination by the Appellate Division is unanimous or there is a dissent by fewer than two justices, an appeal may be taken to the Court of Appeals only pursuant to section 5602 of the Civil Practice Law and Rules by permission of the Appellate Division granted before application to the Court of Appeals or by permission of the Court of Appeals upon refusal of the Appellate Division to grant permission, or by direct application to the Court of Appeals.
An application for permission to appeal must be made within 30 days after service of a copy of the order of affirmance with notice of entry.
If the determination by the Appellate Division is not unanimous and at least two justices dissent on a question of law, relator or petitioner may take an appeal to the Court of Appeals as a matter of right pursuant to section 5601 (a) of the Civil Practice Law and Rules by serving on the adverse party a notice of appeal within 30 days after service of a copy of the order appealed from, with notice of entry, and filing the notice of appeal in the office where the judgment or order of the original instance is entered.
(d) Notification to defendants of people's appeals.
(1) It shall
be the duty of trial counsel, upon service of an order appealable by the people
pursuant to Criminal Procedure Law article 450 to forthwith notify defendant in
writing that the people have the right to take an appeal, the consequences of
the people's appeal and the defendant's rights, including the right to retain
appellate counsel or, if indigent, to apply for leave to appear as a poor
person.
(2) It shall
be the duty of appellate counsel upon service of a notice of appeal or an order
of appointment to notify the client in writing that the people have taken an
appeal from an order of the trial court and the consequences of the
appeal.
(3) In the
event no appellate counsel has appeared on behalf of the defendant, assigned
trial counsel, upon receipt of the people's brief, shall make diligent efforts
to locate the defendant and notify the defendant, in writing, that the people
have filed a brief, the consequences of the people's appeal and the defendant's
rights, including the right to retain appellate counsel, or if indigent, to
apply for leave to appeal as a poor person.
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